Before BIGGS, Chief Judge, STALEY, Circuit Judge, and LEAHY, District Judge.
Petitioner has been ordered deported by the Board of Immigration Appeals. The order is based on the Board's conclusion that he is an alien who subsequent to his entry into this country was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 8 U.S.C.A. § 1251(a) (4).
The original deportation charges were preferred against the alien on August 10, 1960, but due to various adjournments and a reopening of the proceedings, the hearing giving rise to this petition did not take place until September 27, 1961. In the interim various additional charges were lodged by the respondent, but for the purposes of this petition we are concerned with only four charges in all. We deem it advisable at this point to outline the New Jersey criminal actions which formed the basis for them.
(1) Indictment No. 27-59 (robbery of the person on February 13, 1959).
(2) Accusation 85-60 (robbery of the person on February 13, 1959).
(3) Indictment No. 30-58 (receipt of stolen automobile on July 17, 1958).
(4) Indictment No. 31-58 (theft of automobile on July 18, 1958).
The record reveals that with respect to (1) petitioner was sentenced on April 14, 1960, following his plea of non vult.*fn1 However, on November 2, 1960, the sentencing judge vacated this plea together with the sentence which he had imposed. This was done pursuant to N.J.R.R. 3:7-10(a), which provides:
"A motion to withdraw a plea of guilty or of nolo contendere or of non vult, may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea."
On February 20, 1961, the state prosecuting officials filed (2), charging petitioner with the same overt act. On March 30, 1961, he was sentenced on his plea of non vult to this accusation, the state court making a specific recommendation that he should not be deported. On the same day the indictment for (1) was dismissed. With respect to (3) and (4), sentences to concurrent indeterminate terms at the New Jersey State Reformatory followed similar non vult pleas and were suspended.
The special inquiry officer reasoned that because the state court had jurisdiction both to set aside the judgment of conviction on (1) and to thereafter dismiss the proceedings, this charge could not be used as a basis for deportation. He reached the same conclusion with respect to (2) because he found that the recommendation against deportation was binding.*fn2 The officer further held that the respondent had failed to introduce substantial evidence to meet its burden of proof that the crimes charged in (3) and (4) did not arise out of a single scheme of criminal misconduct. On appeal the Board found that the purpose of the state court in vacating the plea and conviction on (1) was to repair the omission to make the statutory recommendation against deportation, and concluded that because of this the recommendation made in (2) was ineffective. It further concluded that (3) and (4) did not arise out of a single scheme of criminal misconduct. Accordingly, the decision of the special inquiry officer was reversed and the alien was ordered deported to Poland.
In this court petitioner for the first time argues that a sentence entered on a plea of non vult is not a conviction for deportation purposes. Similarly, he contends that he was never convicted within the meaning of the statute because he was sentenced to confinement at the New Jersey State Reformatory. His failure to present these contentions before the Board would ordinarily preclude him from raising them at this juncture. 8 U.S.C.A. § 1105a(a) (4); Yee Si v. Boyd, 243 F.2d 203, 207 (C.A.9, 1957); cf. United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S. Ct. 67, 97 L.eø. 54 (1952). However, because we hold that he is not deportable on other grounds, we will assume, arguendo, that he was convicted for the purposes of the immigration law.
Petitioner's more fundamental contentions are that the conviction under (2) cannot be used as a foundation for deportation, and that respondent failed to sustain its burden to establish that (3) and (4) did not arise ...